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By Essy Letsoalo
The author argues that the emphasis on land and traditional leadership in the current debate on agrarian reform is used to avoid the real problems of unequal distribution of racial land, which is the essence of the discriminatory policies of the apartheid regime.
The shortest chapter of Law No. 200 of 1993 on the Constitution of the Republic of South Africa and the 1996 Constitution deals with traditional leadership. Although the institution of the chieftaincy [[i]] is recognized accordingly, there is no mention of communal tenure unless a deduction is made by reference to customary law. However, the range of issues related to land and traditional leaders continues to be the subject of debate, particularly within the framework of the land reform lobby. This article argues that the focus is on avoiding and derailing the debate over repairing the unequal distribution of racial land, the essence of the spatial and economic landscape of the country. 39; apartheid.
Problem outline
The denial and understatement of the history of land dispossession threatens dangerously the possibility of reconciliation, stability and economic prosperity. While the 1996 constitution ensured racial reconciliation on the one hand, it also created serious conflicts within the black population. Former Bantustan residents, faced with apartheid, are forced to share and even fight over limited resources. As in all of Africa, the natural population in these areas has been dramatic. However, the situation in these areas has been exacerbated by forced evictions from apartheid and continued evictions by white landowners. The absence of media protest on the front page for the provision of services should not disappoint anyone who is satisfied with his satisfaction
The establishment of the Bantustans was first determined by the needs of the hand – the work of the capitalist economy of the country; and later, as political pressure increased, they became the government's strategy for dealing with the denationalization of Africans. Land dispossession was carried out by military and legal means, culminating in the infamous land laws of 1913 and 1936.
Chiefs traditionally occupied a central position in African life; a status that guaranteed them economic and political power. The governments of the white settlers took advantage of the people's loyalty to the chiefs. Thus, on the one hand, they made tax collectors under the constraint of Africans in wage labor; while on the other hand, their main power has been eroded by land dispossession. The final capitulation of the main power was the Native Administration Act of 1927, by which the chiefs became white officials, magistrates and chief commissioners of the Ministry of Indigenous Affairs under the White Supreme Chief. was for apartheid created reserves to expand across more land. It was expected that they would be transformed from manpower reservoirs into regular smallholdings with viable enterprises; and the houses from where people could travel comfortably in their fields.
Unfortunately, the situation has not changed or has deteriorated. The author's scholarship was built on the depressing results of landless and almost landless people who survive mainly remittances and old-age pensions (Letsoalo, 1982). Currently, the government's pride is in providing social grants to more than 17 million people, one-third of the population.
Commentators who oppose remedies for unequal redistribution betray the mistake that black South Africans have functionally urbanized. The fact is that studies on the urbanization of apartheid bantustan have long been termed displaced urbanization. The population in these settlements was not different from those of the villages (Letsoalo 1982).
The anti-land reform lobby also argues that blacks do not want land because they have been de-skated in agriculture. As the current author has stated: "The alienation of agriculture is the result of land dispossession and it is now used in econometric proposals against agrarian reform, silent proposals. on the fact that these people do not have skills for urban jobs.The African economy does not have the capacity to absorb prematurely displaced work (Letsoalo, 1994) As Vilakazi ( 2012) indicated, a large part of Africa's rural population migrated with its poverty and misery to urban areas, forming slums.
It was not necessary to have a rocket science to predict that houses built for several decades would not be abandoned simply by getting the right to vote – comfortable as dangerous squatter settlements around the metropolis.This, without any obligations of banks.Very little profession African ls, lawyers, doctors, teachers to judges, etc., have no secondary residence on communal lands in these areas. Not to mention all the workers who continue to be migrants even now, when they are entitled to homes wherever they work. They always retire or are buried in these areas.
It is a fact that chiefs have become the tools of the apartheid regime of denationalization of Africans. Yes, some of them participated enthusiastically, but some like Kgoši Malebogo resisted until the late 1970s. The chiefs were so many victims that they were perceived as beneficiaries of the system. . The key people in this regime have become Nobel celebrities of peace. They became ministers, high officials and judges with generous pensions – all in the name of reconciliation.
The chiefs and by extension the people living on the communal lands, on the contrary, became a bullet to throw between the politicians and the opinionists. The government is perceived to support the institution by funding their accommodation in traditional chiefs houses; and generous wages extended even to indunas or chiefs. Through the Ministry of Culture and Heritage, music and even fashion, the so-called African tradition is celebrated. However, in terms of economic policies and basic services, the government is led by the politically correct to the opinionistas
Thus, the attempts of legislation to treat the land ownership and the communal administration are frustrated by reference to the constitution, which is clearly not. in line with African beliefs. Why so much time and money is used in these attempts is beyond understanding. The Communal Property Associations (CPA) Act 1998 is the tool used to administer tribal communal lands when they are restored under the 1994 Land Restitution and Land Purchase Act. using grants and government loans. The term "communal" in the Act is a deliberate terminological confusion. The land is restored under freehold title. Some lands have already been lost through bank foreclosures. Former tribesmen, accustomed to farming as individual families were forced to farm together, with disastrous results. Ironically, the chess is now attributed to the chiefs
For example, the book of the venerated Archbishop Makgoba laments that the rich Magoebaskloof Valley (sic) of his ancestor Kgoši Makgoba continues to enrich the whites, while members of his tribe are banished and poverty (Makgoba, 2017). However, commentators such as Jacky May (City Press 10 June 2018) abuse his book and his name to advance the story that chieftaincy is to blame for the conflict between beneficiaries. He sneakily calls the government's favorite legal entity as a "royal trust". This, despite the book referring to a "community of trust". This is not just semantics. It's criminal in the context of so much anger caused by land dispossession and the rewrite of history.
Then the famous former President Motlanthe becomes the bearer of "bad news" that the High Level Panel he chaired recommended abolition. His panel considers neither the participation of the administration of Klerk and the Minister of Land Affairs of Minister Hanekom to the promulgation and implementation of the law, respectively, of the Ingonyama Trust.
Clearly, the first democratic administration loyally applied the Ingonyama Trust Act at great expense, while abolishing the Lebowa Land Titles Trust in the current Limpopo Province. The latter was headed by lawyer Piet Steytler, who helped the Lebowa Bantustan tribes claim the title of the state. It would be good for lawyer Geoff Bundler SC to comment on the recent celebration by the Restitution Commission of the confirmation of the tribal title in the Sekhukhune region – "The Minister gives the title of the Roka Lebea tribe" (Capricorn Voice May 30 -June 5, 2018). The fact that the complaint was filed on November 23, 1998 is a long story, and many officials were bruised before the restitution law was changed by Minister Didiza in the second administration. Unfortunately, this recognition of tribal land ownership is misleading and tainted by the establishment of a CPA to hold a tribal land title.
Do not suggest that the two trusts are the best thing that can happen to communal lands in South Africa. The fact is that they were not the children of a democratic government. The last five administrations have failed to meet the needs of the victims of apartheid in this regard. The 1996 Act on the Interim Protection of Informal Land Rights (IPILRA) has become the tool for alienating tribal communal lands (Letsoalo and Thupana, 2015). What makes communal land rights "informal"? These people are owners. The courts are flooded with business arising from this legislation. Corruption is legalized by this legislation. If it is not the members of the government who have created structures to administer the accused funds, it is the competition between them and the traditional councils for loot. The losers are the landless majority, some of whom must be relocated; The true beneficiaries are mining companies, developers and co-op partners Black Economic Empowerment (BEE). In addition, there is no market value for communal lands
The injustice was also reflected in the exclusion of government housing for the poor, commonly referred to as the Houses of the Reconstruction Program and Development (PDR). Originally, they were not provided on communal land. Instead, Bantustan townships were established on tribal communal lands to facilitate the provision of RDP houses. This has changed since then, but the discrimination has been recorded at a high cost.
Following the artificial amalgam of some towns with villages under communal rule in local municipalities, some local municipalities initially refused to provide services in the villages. are on state land. Again, a lot of money has been spent trying to resolve the stalemate. The animosity has certainly not been treated. The services provided remain as unequal as before 1994. Blacks continue to live in areas formerly designated as Bantustans, while whites continue to live in areas formerly reserved for whites, along with some blacks who may to pay for the land
. reform has disagreed over the increase of communal land through the redistribution program. This denial has been portrayed in the politically correct language, not to consolidate the Bantustans; the increase in traditional communal lands is tantamount to empowering traditional leaders whose institution is corrupt and oppresses women; and the chieftaincy is doomed to natural death and is already sustained only in KwaZulu-Natal.
The major problem that progressive scholars have with the Bantustans was / is the limited areal space compared to the white areal space. If the ratio were to be 10: 1 in favor of the "Bantustans," Africans would have reason to celebrate. Africans who have been victims of Bantustans can not legitimately be denied land on the pretext of being politically correct and not expanding the Bantustans; etc. [Letsoalo 22/10/96]
Unfortunately, the latest resolution of the African National Congress Party (ANC) in 2017 to "democratize" communal lands and to "ensure security of tenure" is nothing more than a veil to legitimize APC and conversion of communal tenure into free tenure. To add insult to injury, a parliamentary committee charged with dealing with "the expropriation of land without compensation" also asks the "people" what is the pattern of occupation. I hope someone understands what all this means. This gave Conservative political parties the opportunity to confuse land reclamation and unequal land redistribution with so-called tenure security
Community Land Tenure
Africans lived on communal lands before Invasion and dispossession of settlers. There was no controversy over land ownership. Traditional or customary law still recognized land ownership by different tribes or clans. The history of occupation and control of the tribe on its territory has determined its land ownership and other land rights. In fact, most tribes are still identified by means of the land they occupy, for example, ga-Sekhukhune or ga-Modjadji. The land was clearly defined, marked by geographical and natural features such as mountain ranges, peaks, hill ridges, rocky outcrops, cliffs, gorges, valleys, plateaus, rivers, dongas and even giant trees. communal lands have not been surveyed and registered, and have not done less than ownership by a particular tribe. The same applies to all parcels allocated to individual families or households for residential and cultural purposes. The tribe was the owner and was so recognized by other tribes. Members of another tribe could enter the territory of another tribe if they clearly demonstrated their recognition of the sovereignty of the resident tribe.
This understanding of the concept of tribal land ownership is still valid and observed, despite the rampaging badault on communal lands and chieftaincies through centuries of white domination. Even the fact that tribal lands are registered as state land can change that. In the late 1970s and early 1990s, the results of the author's research in present-day Mpumalanga and Limpopo provinces show both traditional adaptations and the practice of communal land tenure (Letsoalo, 1987). , 1991, 1994). , there are similarities in the characteristics of communal land systems that extend beyond the Bapedi population sector beyond the northern, southern and western sectors of South Africa; in Botswana and Lesotho; and interesting, even for the Australian aboriginal population (Gilbert, 1994). A great revelation of the study is the myths that resulted from the codification of the traditional features of community tenure.
There are two main forms of tenure, communal and free. The fundamental difference between the two is that the former is inalienable, free by membership as described above; and the latter is alienable, can be bought and sold. The present author went so far as to suggest that the former had / had values more conducive to development than the standard characteristics of the latter (Letsoalo, 1991).
For example, in freehold tenure, some individuals may possess all available resources to the exclusion of the majority and without using them productively. Under communal tenure, all those who need land have access to common land. Under communal land tenure, arrangements can be made to transfer the right of use from one family to another, a system that redistributes surplus land to those that do not. On the other hand, Frank tenure perpetuates a clbad of non-possessors with its exclusive private use and speculation.
Because freehold landowners have surplus land, they have tenants who use the land on the landlord's terms, which are inevitably exploitative. The only option for tenants is the lack of land, which happens when homeowners decide not to have tenants. Under communal tenure, owners / users control both their production and consumption without being dictated. Even the chef does not have control over the individual properties once they have been awarded.
The following answer to Professor Ben Turok clearly underlines the virtues of community tenure: "Everyone has the right to land. people squatting in a tribal area, because every family is entitled to land for residential and agricultural purposes … Banks do not recognize this kind of property because they know that they can not not get their hands on If the banks do not meet your obligations, the banks say that the system does not ensure the security of tenure to the person who is badigned this land because it can not to be carried away under no circumstances … You can not sell it and You will continue, even if you are poor, to have a place to live, to make a living … From time to time, you hear people ejected from the houses RDP and other houses because they can not pay their debts to furniture stores, or m unicipal rate, or to banks. So they end up squatting in the street. Is it better? "(Holomisa, 2005 pp.14-15)
Here are some of the myths that need demystification, and have long been debunked (Letsoalo, 1987, 1991) between the chief, the tribe, and the members of 39; a tribe leading to the alleged controversy as to the owner of the land.The chief is in fact part and head of the tribe.There is no vernacular for so-called trustee, guardian or even nominal owner are concepts that misleadingly refer to the appropriation of tribal land by successive, colonial, and democratic governments.
Second, this property is synonymous with land ownership and therefore communal tenure is not property and does not provide tenure security, which can be used Tribal communal land is hereditary from generation to generation and tribal membership is lost in very exceptional cases The best known category of Apartheid is that of the black zones, free zones hold permanence. Where was the security of tenure? A title should not be the only requirement for credit. Indeed, many Africans would still not be solvent even if they were title holders. In the words of John Bruce (1989), nothing can replace the "security of access to economic resources" embodied in community tenure. And, to quote one of the best writers on land rights: "The inheritance of the earth was a state of utterly secure and endless possession that extended from generation to generation to all those born within the bounds their tribal area "(Gilbert, 1994 p.3).
Third, that the land is used in common. In fact, individual families own their arable fields and their residential sites. Grazing and other resources are used in common as needed.
Last but not least, women are discriminated against by land ownership. When land was allocated to a family, no one could be discriminated against. Households headed by women receive land. Individualization has in fact been reported as having marginalized women (Coldham 1982, Migot-Adhola, 1991)
As I indicated elsewhere: "… there is no point in romanticizing indigenous land system. This system would have evolved to respond to new realities, and the system has largely contributed to adapting to new circumstances – even those inflicted for the purpose of oppressing Africans: for example, individuals have access to business sites; Fallow for more than a specified number of years, private property such as buildings can be sold, the system is in transition. "(Letsoalo, 1991, p.108) Corruption is not a monopoly of chiefs How many elected leaders have been deemed corrupt Laws, institutions and socialization are obviously a cure.
Change Policies to undermine community tenure
The original official rationale for pushing Africans into reserves and Bantustans, land dispossession and denial of title, was to preserve their tradition, but two important aspects of African tradition was hampered, namely the African land management system and the economic status of women
In the 1950s, reserves could no longer be used to subsidize the capitalist economy.They had been seriously impoverished The government has admitted that reserves are generally congested, over-stocked and eroded. particularly in land tenure. However, when the 1956 Tomlinson Commission Report recommended freehold ownership as an appeal, the government rejected the proposal. Everything that would make Africans equal to whites was intolerable. Officially, it was claimed that freehold property would undermine African culture, the very culture that had already been undermined. Improvement planning was then introduced to divide blacks between farmers and non-farmers who were transferred to artificial towns, called kapteinsdorpe or closer settlements.
The 1980s were characterized by the reform and cooptation of a clbad of blacks. material advancement; and a buffer between white minority owners and the black majority without land. Politics has gone from denial to black coercion to accept absolute ownership. It was an integral part of a general strategy. Lange's report advocated the privatization of education in 1981; Simon Brand advocated privatization of other sectors in 1982; The White Paper on privatization was published in 1987. Afrikaans universities proposed the modernization of communal land rights. The KwaZulu Land Bill stated that traditional chiefs had to first accept the conversion of a freehold farm.
In 1990, it was clear that Bantust politics had failed. The policy has shifted to preemptive land reform by a prominent majority government. The well-known land laws were replaced by the 1991 Law on the Abolition of Land Measures, which was an extension of the privatization strategy. Regarding the new strategy, all the sectors nationalized under the white government had to be privatized before the majority government took over. More importantly, a market-based agrarian reform has been approved. The Land Rights Modernization Act of 1991 (ULTRA) provided for the transfer of state land to tribal authorities and the improvement of community tenure (lower) to free tenure (higher).
After 1994, it is difficult to attribute any agrarian reform policy to the ruling ANC party. First, because the democratic government pursued all the policies and legislation of the 1991 White Paper on Agrarian Reform of the Nationalist Party (Letsoalo and Thupana 2013). Finally, because the principles of equality, positive action and reconciliation in the property clause are subject to different interpretations.
Thus, on the eve of the 25th anniversary of democracy, no legislation has been adopted. prescribed by the constitution. The law on communal land rights (CLARA) was adopted in 2004 after several bills. Opponents of CLARA succeeded in overthrowing the law by the Constitutional Court. The aborted law provided for "the registration and the allocation of title deeds and the democratic administration of the communal lands". This is the government's vocabulary for free property and the choice between traditional councils and elected CPA. The introduction of "choice" per se is problematic, but supposedly consistent with democratic political correctness.
The 2017 Community Land Tenure Bill has many features that were included in previous bills leading up to CLARA. Considering the fact that opponents of CLARA were involved in Motlanthe's high-level panel which recommended that IPILRA become permanent, the government has a lot to do for "security of tenure and democratization of the country." communal land administration ". Fortunately, the communal tenure continues to be revived. But, as noted above, IPILRA is not a panacea
All of these attempts to manage community tenure will result in an expensive economic and social disaster. The damage caused by the restructuring of apartheid will not be erased by a piecemeal approach to land reform. All countries of the Southern African Development Community have chosen to maintain and even expand the area under communal tenure. The farther they went to introduce the lease. For the record, communal tenure is closer to renting, with the advantage of free land. Many land tenure issues need to be transformed. For example, the legal framework related to marriage, inheritance and the credit system. All minds should be on the bridge to help move the nationalization of land, to facilitate the proper use of land and economic stability. Otherwise, the prospect of peace and stability will be in vain
References
Bruce, J. 1989: The Variety of Reforms: A Review of the Recent Experience of Agrarian Reform and Land Tenure Reform, with special reference Experience, Conference Document on Human Rights in a Post-Apartheid Constitution, Columbia University, New York
Coldham, S. 1982: Land Reform in Kenya – Some Problems and Perspectives, In Third World Studies, Law on Alternative Strategies for Rural Development, International Studies of the Third World Legal Association, p.82-103
Gilbert, K. 1994: Because a White man will never do it, Angus and Robertson, Adelaide.
Holomisa, SP 2005: Old Traditions : Nouvelle Afrique du Sud, New Agenda 17, p.10-17
Letsoalo, EM 1982: Stratégies de survie en milieu rural Lebowa: Une étude de la géographie de la pauvreté, thèse de maîtrise, WITS University.
1983: Displaced Urbanisation: Le système de règlement de Lebowa, Development Studi 1987: Réforme agraire en Afrique du Sud: une perspective noire, Skotaville Publishers, Johannesburg
1991: Réformes agraires – Initiatives de l'État, dans une moisson de mécontentement : Questions foncières en Afrique du Sud, édité par M. De Klerk, IDASA, Le Cap, p.99-111
1994: Restauration de la terre: problèmes et perspectives, en Afrique du Sud: le défi du changement, édité par V Maphai, SAPES, Harare, pages 202 à 220.
1996: Lettre à la Law Commission, Pretoria,
Letsoalo, EM et Thupana, MJJ 2013: L'abrogation des lois foncières: le défi de la réforme agraire en Afrique du Sud, Dynamique sociale: un journal des études africaines, 39 (2) p.298-307.
2015: L'aliénation des terres communales en Afrique du Sud: Une nouvelle forme de dépossession? Occasional Paper (77), Centre d'études avancées de la société africaine (CASAS, Le Cap
Makgoba, T. 2017: Foi et courage: Prier avec Mandela, Tafelberg, Le Cap.
Migot-Adhola, S. et.al 1991: Les systèmes de droits fonciers en Afrique subsaharienne: une contrainte sur la productivité – Revue économique de la Banque mondiale, 5 (1) p.155-175.
Vilakazi, H. 2012: Comment résoudre les problèmes économiques? Crise sociale en Afrique du Sud, www.professorvilakazi.wordpress.com, 9-12 septembre
* Essy Letsoalo est l'auteur de La réforme agraire en Afrique du Sud: Une perspective noire et de plusieurs articles sur la réforme agraire et foncière
[i] La chefferie est un terme controversé faisant référence au système de gouvernance africain pré-colonisateur: il n'y a pas de terme équivalent pour bogoši dans Sepedi et d'autres équivalents bantous et nguni
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